Introduction

Consider the following hypothetical scenario. A credit reporting agency fails to maintain accurate credit files for consumers by labeling a U.S. citizen as a known drug trafficker. This citizen, a single mom, obtains her dream job which provides her with the health insurance she needs to care for her child. As part of its onboarding procedures, her new employer subjects her to preemployment verification of her background. In her efforts to prepare for her background check, she reaches out to the credit reporting agency to obtain her report. Lo and behold, she learns that the report erroneously labeled her as a known drug trafficker. Her employer will run her report within the next week. However, it will take her weeks to correct the report. Therefore, she must suffer the embarrassment of explaining the confusion to her new employer—not to mention the potential delay in her start date because of the issue, or worse still, denial of her employment. As a result, she begins to suffer from anxiety, sleeplessness, and panic at the prospect of her dream job being denied to her because of the erroneous report that is soon to be disseminated to her employer. She files a suit alleging that the credit reporting agency violated federal credit reporting law and that it created a sufficiently likely risk of future harm vis a vis denied employment and that this risk caused her emotional distress in the form of anxiety, sleeplessness, and panic. Does this potential plaintiff have standing to sue?

This is likely the situation contemplated by Justice Kavanaugh when he rendered his opinion in TransUnion.[2] The Court made clear that “in a suit for damages, mere risk of future harm, standing alone, cannot qualify as a concrete harm—at least unless the exposure to the risk of future harm itself causes a separate concrete harm.”[3] However, because the situation described above does not align with the facts in TransUnion, the Court did not address whether such a plaintiff would have suffered a “separate concrete harm” for the purposes of Article III standing.[4] By using the words “separate concrete harm,” the Court suggested that a common law analog was necessary.[5] However, without first establishing a common law analog, the Court indicated that if the plaintiffs in TransUnion had alleged that they suffered an emotional distress injury from the risk of future dissemination of their inaccurate consumer file then plaintiffs may have survived the attack on their Article III standing.[6]

Following this limited carve out from TransUnion, some lower courts do not look for common law analogs when dealing with plaintiffs who allege emotional distress injuries caused by a risk of future harm.[7] In fact, as discussed further below, some lower courts appear to believe that TransUnion stands for the proposition that, in a damages case for stand-alone emotional distress injuries caused by a risk of future harm, such an injury is sufficiently concrete if the risk is sufficiently likely and the plaintiff suffered a severe enough emotional distress injury caused by that risk.[8] For example, instead of analogizing a plaintiff’s case to intentional infliction of emotional distress (IIED) for the purposes of determining concreteness, lower courts improperly consider the likelihood of the risk and the type of emotional distress injury to determine concreteness.[9] This treatment conflates concreteness with imminence, which appear to be analytically distinct elements of standing.

This Article proceeds in two parts. In Part I, the Article provides a brief background regarding Article III standing and its principles. This then turns to a discussion of the Court’s recent decisions in Spokeo and TransUnion, each of which added unique parameters to standing doctrine. Part II discusses how lower courts are misconstruing the concreteness inquiry post-TransUnion when dealing with stand-alone emotional distress injuries caused by a risk of future harm. It then offers perhaps a better reading of TransUnion in the hopes that lower courts will reorient their rationales to one that is more loyal to Article III precedent.[10]

I. Article III Standing and the Additions of Spokeo and TransUnion

Articles I through III of the Constitution limit the authority of the respective branches—a concept known as separation of powers.[11] Article III limits the power of the Judicial Branch of government to prevent it from intruding upon the functions and powers of the other two branches (the Legislative and Executive Branches).[12] Article III states that the Judiciary’s power is limited to “Cases” and “Controversies.”[13] Among the requirements for a case or controversy is standing.[14] To have proper standing, a plaintiff must have a “personal stake” in the matter.[15] Court precedent indicates that standing has three requirements: (1) injury-in-fact that is (a) concrete and particularized, and (b) actual or imminent; (2) traceability to defendant’s conduct; and (3) redressability.[16]

In Spokeo, the issue was whether plaintiff had standing to bring a Fair Credit Reporting Act (FCRA) claim for defendant’s failure to “follow reasonable procedures to assure maximum possible accuracy of” plaintiff’s consumer report.[17] The Court held that plaintiffs do not have standing when they allege “a bare procedural violation, divorced from any concrete harm” because such claim does not satisfy the injury-in-fact requirement of Article III standing.[18] The Court first stated that to be “concrete,” the injury must be real, not abstract—although the Court has previously recognized both tangible and intangible harms.[19] However, to determine whether intangible harms confer Article III standing, “both history and the judgment of Congress play important roles.”[20] In particular, “it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.”[21] Additionally, Congress may “elevate to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.”[22] However, “Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation.”[23]

Additionally, in TransUnion, the issue was whether 6,332 of 8,185 class members had Article III standing to bring a FCRA violation for defendant’s failure to “follow reasonable procedures to assure maximum possible accuracy of” their credit files that were not provided to third parties.[24] First, the Court stated that 1,853 class members had standing under the common law analog inquiry provided in Spokeo because their allegations regarding dissemination of false information by defendant to third parties sounded in the common law analog of defamation; therefore, they successfully pled a concrete injury.[25] However, because the element of publication is a touchstone inquiry in a defamation case and because defendant had not disseminated the inaccurate credit files of the 6,332 class members, the Court determined those class members did not suffer a concrete harm for the purposes of conferring Article III standing.[26]

However, the plaintiffs asserted an alternative argument; the plaintiff claimed that the inaccurate credit files presented a risk of future harm to them, relying on the Court’s prior interpretations of Clapper, “where the Court said that ‘the risk of real harm’ (or as the Court otherwise stated, a ‘material risk of harm’) can sometimes ‘satisfy the requirement of concreteness.’”[27] Nevertheless, the Court in TransUnion noted that Clapper was a case for injunctive relief, while the plaintiffs in this case sought retrospective damages.[28] The Court, therefore, held that “in a suit for damages, mere risk of future harm, standing alone, cannot qualify as a concrete harm—at least unless the exposure to the risk of future harm itself causes a separate concrete harm.”[29] Accordingly, the Court held that the 6,332 plaintiffs did not have standing because they did not “present evidence that the class members were independently harmed by their exposure to the risk itself—that is, that they suffered some other injury (such as an emotional injury) from the mere risk that their credit reports would be provided to third-party businesses.”[30]

II. Proper Guidance for Lower Courts Misconstruing TransUnion

Lower courts misconstrue TransUnion as creating a carve out from the common law analog inquiry when facing a damages suit for stand-alone emotional distress injuries caused by a risk of future harm. This carve out, albeit improper, is being applied by lower courts, resulting in confusion to the injury-in-fact elements. Instead, the interpretation of TransUnion should be refocused to find a suitable common law analog for these types of claims.

In TransUnion, with respect to plaintiffs’ standing for the risk of future injuries, the Court drew a distinction from its decision in Clapper and stated, “that in a suit for damages, the mere risk of future harm, standing alone, cannot qualify as concrete harm—at least unless the exposure to the risk of future harm itself causes a separate concrete harm.”[31] In the accompanying footnote, the Court stated:

For example, a plaintiff’s knowledge that he or she is exposed to a risk of future physical, monetary,
or reputational harm could cause its own current emotional or psychological harm. We take no
position on whether or how such an emotional or psychological harm could suffice for Article III
purposes—for example, by analogy to the tort of intentional infliction of emotional distress.[32]

By failing to analogize the circumstances presented in TransUnion to IIED, and instead contemplating that the plaintiffs might have prevailed had they alleged that they suffered emotional distress injuries from the risk of their credit file being disseminated, the Court in effect gave license to lower courts to forgo the common law analog inquiry to determine concreteness, as provided in Spokeo. Instead, when facing damages claims for stand-alone emotional distress injuries caused by a risk of future harm post-TransUnion, lower courts appear to be concerned with whether the risk of future harm was sufficient[33] and whether the emotional distress injury was sufficient[34] to determine concreteness. The inquiry regarding emotional distress would appear to be sound because lower courts can determine whether the emotional distress injury is severe enough to make an analogy to IIED.[35] However, in making their determinations, lower courts do not cite to analogous IIED cases where a similar emotional distress injury was found to be sufficiently severe for the purposes of IIED.[36] Further, in conducting the inquiry regarding whether the risk of future harm is sufficient, lower courts appear to be conflating the “imminent” element of the injury-in-fact inquiry with the concreteness element. In determining whether a risk of future harm is “certainly impending,” lower courts view this as a determination of concreteness.[37] However, concreteness and imminence are analytically distinct elements of the injury-in-fact inquiry.[38]

Instead, the key questions to determining concreteness of a stand-alone emotional distress injury caused by a risk of future harm (in a case for damages) is to ask is whether the alleged conduct that causes the risk of future harm is conduct that is extreme and outrageous and whether the emotional distress injury is sufficiently severe such that a common law analogy to IIED may be found. [39] This standard finds support within TransUnion; the risk in TransUnion was that the plaintiffs’ erroneous credit files labeling them as either a known terrorist or drug trafficker would be provided to a third-party business.[40] The Court reasoned that the plaintiffs did not “present evidence that the class members were independently harmed by their exposure to the risk itself—that is, that they suffered some other injury (such as an emotional injury) from the mere risk that their credit reports would be provided to third-party businesses.”[41] Plaintiffs had not shown that they suffered emotional distress from the possibility that a third-party business would be told erroneously that the plaintiff was a known terrorist or drug trafficker—it is uncertain whether this constitutes extreme and outrageous conduct. Although the court in TransUnion did not directly address this issue, it appears that the Court suggested that the act of a defendant falsely telling a third party that a plaintiff is a known terrorist or drug trafficker is likely extreme and outrageous conduct for the purposes of analogizing to IIED. In fact, IIED case law contemplates circumstances where certain kinds of falsehoods alleged by a defendant about a plaintiff to a third party rise to the level of extreme and outrageous behavior by the defendant like the alleged conduct in TransUnion.[42]

Conclusion

This reinterpretation of TransUnion potentially gives lower courts proper guidance in handling the concreteness inquiry in suits for damages involving stand-alone emotional distress injuries caused by a risk of future harm. What appears to be animating lower courts’ liberal (and perhaps exploitive) reading of TransUnion is that the law in the past few decades has begun to recognize that mental health issues are real and are a matter of public and popular concern and thus new judicially cognizable injuries are being developed.[43] However, unless and until the Court decides to expressly create a new judicially cognizable injury, TransUnion must be narrowly followed for the purposes of maintaining Article III precedent.